Akio KAWASHIMA; Fusako Kawashima, Petitioners, v. Michael B. MUKASEY, Attorney General, Respondent. Akio Kawashima; Fusako Kawashima, aka Fusako Nakajima, Petitioners, v. Michael B. Mukasey, Attorney General, Respondent.
Nos. 04-74313, 05-74408
United States Court of Appeals, Ninth Circuit
July 1, 2008
Argued and Submitted Feb. 8, 2007.
CONCLUSION
We affirm the district court‘s denial of Mayer‘s motion to suppress. We also affirm the district court‘s imposition of the ACCA‘s mandatory fifteen year minimum sentence.
AFFIRMED.
Akio KAWASHIMA; Fusako Kawashimа, Petitioners, v. Michael B. MUKASEY, Attorney General, Respondent. Akio Kawashima; Fusako Kawashima, aka Fusako Nakajima, Petitioners, v. Michael B. Mukasey, Attorney General, Respondent. Nos. 04-74313, 05-74408.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted Feb. 8, 2007.
Filed July 1, 2008.
Nancy Freedman, Office of Immigration Litigation, Washington, DC, argued the cause for the respondents; Peter D. Keisler, Assistant Attorney General, Civil Division, M. Jocelyn Lopez Wright, Assistant Director, and James A. Hunolt, Senior Litigation Counsel, Office of Immigration Litigation, Washington, DC, were on the brief.
Before: DIARMUID F. O‘SCANNLAIN, EDWARD LEAVY, and CONSUELO M. CALLAHAN, Circuit Judges.
ORDER
Petitioner‘s “Amended Petition for Rehearing With a Suggestion for an En Banc Hearing” is GRANTED. The opinion filed on September 18, 2007, and appearing at 503 F.3d 997 (9th Cir.2007) is withdrawn. The superseding opinion will be filed concurrently with this order.
Petitioner‘s “Motion For Leave to File a Response to the Reply of the United States to the Appellant‘s Amended Petition for Rehearing” is DENIED as moot.
The parties may file new petitions for rehearing or rehearing en banc as provid
OPINION
PER CURIAM:
We are called upon to decide whether petitioners’ convictions for subscribing to a false statement on a tax return and for aiding and assisting in the preparation of a false tax return qualify as “aggravated felonies” that subject them to removal under the relevant immigration laws. In our previous opinion in this case, Kawashima v. Gonzales, 503 F.3d 997 (9th Cir.2007), withdrawn 530 F.3d 1111, 2008 WL 2579212 (9th Cir.2008), we conducted a limited examination of the record of petitioners’ convictions to answer this question. One day aftеr our panel opinion was filed, our en banc court decided Navarro-Lopez v. Gonzales, 503 F.3d 1063 (9th Cir. 2007) (en banc), which causes us to reconsider our analysis.
I
Akio Kawashima and Fusako Kawashima1 are natives and citizens of Japan. The Kawashimas were admitted to the United States as lawful permanent residents on June 21, 1984.
In 1997, Mr. Kawashima pled guilty to subscribing to a false statement on a tax return, in violation of
On August 3, 2001, the Immigration and Naturalization Service2 issued separаte Notices to Appear to the Kawashimas alleging that the couple was removable because their prior convictions constituted aggravated felonies under
After holding a removal hearing, an Immigration Judge (“IJ“) concluded that the Kawashimas’ convictions were aggravated felonies under Subsection M(i). Accordingly, the IJ found the Kawashimas removable, denied their motion to terminate the proceedings, and ordered that they be removed to Japan.
The Kawashimas appealed the dеcision, and the Board of Immigration Appeals (“BIA“) remanded because the transcript containing the testimony of the hearing and the IJ‘s oral decision was defective. After further proceedings, the IJ again denied the Kawashimas’ motion to terminate proceedings and ordered them re-
The Kawashimas subsequently filed a motion to reopen seeking waiver of inadmissibility under the Immigration and Nationality Act (“INA“)
The Kawashimas timely filed separate petitions for review of the BIA‘s affirmance of the IJ‘s removal order and the BIA‘s denial of their motion to reopen. We consolidated the petitions for review pursuant to
II
We must first decide whether the Kawashimas’ convictions qualify as aggravated felonies under Subsection M(i). To do so, we rely on the familiar two-step test set forth in Taylor v. United States, 495 U.S. 575 (1990), and Shepard v. United States, 544 U.S. 13 (2005). See Gonzales v. Duenas-Alvarez, 549 U.S. 183, 188 (2007) (acknowledging that the courts of appeals have “uniformly” relied on Taylor for this inquiry). First, we “look to the statute under which the[petitioner] was convicted and compare its elements to the relevant definition of an aggravated felony in
If the statute of conviction proscribes a broader range of conduct than the relevant definition of an aggravated felony, we move to the modified categorical analysis, and conduct a “limited examination of documents in the record оf conviction,”4 asking whether such documents provide “sufficient evidence to conclude that the alien was convicted of the elements of the generically defined crime even though his or her statute of conviction was facially over-inclusive.” Id. (internal quotation marks and citation omitted).
In this case, Subsection M(i) defines as an aggravated felony any offense that “involves fraud or deceit in which the loss to the victim or victims exceeds $10,000.”
A
We begin with the categorical apрroach. Mr. Kawashima pled guilty to subscribing to a false statement on a tax return, in violation of
Notes
B
We have reached this point in the Taylor analysis on four occasions in the past when comparing statutes of conviction lacking a monetary loss element to Subsection M(i) and each time we have turned to the record of conviction to determine whether the jury actually found, or the petitioner (as defendant) necessarily admitted a loss to the victim in excess of $10,000. See Kharana v. Gonzales, 487 F.3d 1280, 1284 (9th Cir.2007); Ferreira, 390 F.3d at 1098; Li, 389 F.3d at 897; Chang, 307 F.3d at 1189-90. Sitting en banc in Navarro-Lopez, however, we curtailed our reliance on the record of conviction in circumstances such as these.
In Navarro-Lopez, we held that a petitioner‘s conviction for accessory after the fact under California state law was not categorically a “crime involving moral turpitude” as defined in the INA because the California statute under which petitioner was convicted proscribed a “broader” range of conduct than the generic definition that the INA provides. 503 F.3d at 1071 (interpreting
The modified categorical approach ... only applies when the particular elements in the crime of conviction are broader than the generic crime. When the crime of conviction is missing an element of the generic crime altogether, we can never find that “a jury was actually required to find all the elements of” the generic crime. See Li v. Ashcroft, 389 F.3d 892, 899-901 (9th Cir.2004) (Kozinski, J., concurring) (providing examples).
Id. at 1073. Because we concluded that the Cаlifornia statute “lack[ed] an element of the generic crime—i.e., the moral turpitude, the requisite depravity,” we held that Taylor prohibited us from examining the record of petitioner‘s conviction to determine whether he was, in fact, convicted of such an act. Id. As we explained,
The crime of conviction can never be narrowed to conform to the generic crime because the jury is not required—as Taylor mandates—to find all the elements of the generic crime. Even if [petitioner] had admitted to depraved acts, those admissions could not be used to modify the crime because they were not necessary for a conviction.
Id. (footnote and citation omitted).
The statutes under which the Kawashimas were convicted,
Nevertheless, two factors give us pause before concluding that Navarro-Lopez compels such a result here. First, we have previously applied the modified categorical approach in cases where the statute of conviction prohibits a broader range of conduct than the generic offense, regardless of whether the former lacks a particular element of the latter. See, e.g., United States v. Parker, 5 F.3d 1322 (9th Cir.1993) (applying the modified categorical approach to determine whether a jury found the defendant guilty of generic burglary even though the statute under which the defendant was convicted did not require unlawful entry, a necеssary element of the generic definition); United States v. Alvarez, 972 F.2d 1000 (9th Cir.1992) (per curiam) (same). In Navarro-Lopez, we did not explicitly overrule these precedents, or the four decisions in which we have applied the modified categorical approach in examining the monetary loss requirement under Subsection M(i). See Kharana, 487 F.3d at 1284; Ferreira, 390 F.3d at 1098; Li, 389 F.3d at 897; Chang, 307 F.3d at 1189-90. Nevertheless, Navarro-Lopez‘s statement that the modified categorical approach never applies when “the crime of conviction is missing an element of the generic crime altogether,” 503 F.3d at 1073, is plain and clear. And, because such statement is irreconcilable with our precedents that have held otherwise, we must conclude that they have been impliedly overruled.
In addition, however, we are given pause by the distinction between the handful of aggravated felonies listed in the INA that require a specific monеtary loss and the other generic offenses we construe under Taylor. When we apply Taylor in the ordinary case, we consider whether a conviction qualifies as a generic offense with a unitary definition, such as a “crime involving moral turpitude” in removal cases or “burglary” in sentencing enhancement cases, to name just two. The Navarro-Lopez rule, which requires that the statute of conviction must contain every element of the generic offense before we resort to the modified categorical approach, plainly applies in this setting. See Plasencia-Ayala v. Mukasey, 516 F.3d 738, 749 (9th Cir.2008) (applying Navarro-Lopez in a crime involving moral turpitude case); United States v. Jennings, 515 F.3d 980, 992-93 (9th Cir.2008) (applying Navarro-Lopez rule in an Armed Career Criminal Act case).
Subsection M(i), however, requires us to undertake a somewhat different inquiry. That statute defines as an aggravated felony any offense that “involves fraud or deceit in which loss to the victim or victims exceeds $10,000.”
Under this construction, we suppose, the absence of a monetary loss element from the Kawashimas’ statutes of conviction would not preclude us from examining the record to determine the amount of loss their prior offenses caused. Such an approach would account for the fact that most fraud statutes do not contain a monetary loss element.7 In addition, it would
Yet while these considerations might warrant examining the record of conviction to determine whether the Kawashimas’ offenses resulted in the monetary loss required by Subsection M(i), we must conclude that Navarro-Lopez forecloses that option. We have consistently interpreted Subsection M(i)‘s monetary loss requirement as an “element” of the generic offense, which the record of petitioner‘s conviction must demonstrate that the jury actually found or the petitioner (as defendant) necessarily admitted. See Kharana, 487 F.3d at 1283-84; Li, 389 F.3d at 897; Chang, 307 F.3d at 1189-91. And Navarro-Lopez‘s prohibition on examining the record of conviction plainly applies to all prior offenses that lack an “element” of the generic offense. 503 F.3d at 1073.
Moreover, we find confirmation for our view in then-Judge Kozinski‘s concurrence in Li, the lone authority cited to in Navarro-Lopez as support for this rule. Navarro-Lopez, 503 F.3d at 1073 (citing Li, 389 F.3d at 899-901 (Kozinski, J., concurring)). The question presented in Li was identical to the one presented here—whether a pеtitioner‘s convictions under fraud-related statutes that lacked monetary loss elements could qualify as aggravated felonies under Subsection M(i). 389 F.3d at 893-94. The majority concluded that such a result was possible if the record of petitioner‘s conviction demonstrated that the jury “actually found” him to have caused a loss greater than $10,000. Id. at 897. Judge Kozinski, on the other hand, wrote separately to state that he would not have examined the record at all because Subsection M(i)‘s amount of loss requirement “wasn‘t an element” of the statutes under which the petitioner had been convicted. Id. at 900. Because the en banc court in Navarro-Lopez quoted Judge Kozinski‘s concurrence directly, we cannot reasonably conclude that it did not intend for its rule
Thus, because the statutes to which the Kawashimas pled guilty to violating do not require proof of any particular monetary loss, we do not examine the record of their convictions to determine whether they necessarily pled guilty to causing a loss in excess of $10,000. Our conclusion that the government failed to show that the Kawashimas’ convictions are aggravated felonies under the categorical approach means that the Kawashimas are not removable and, accordingly, their petitions for review of the BIA‘s affirmance of the removal order must be granted.
III
Our final task is to determine whether the BIA erred in denying the Kawashimas’ motion to reopen. As we have granted the Kawashimas’ petition for review of the removаl order, we must dismiss their petition for review of the BIA‘s denial of their motion to reopen as moot. See Goldeshtein v. INS, 8 F.3d 645, 646 n. 1, 650 (9th Cir.1993) (dismissing as moot petitioner‘s motion to reopen after concluding that the petitioner is not removable because he was not convicted of a predicate offense involving moral turpitude).
IV
For the foregoing reasons, Mr. and Mrs. Kawashima‘s petition for review of the BIA‘s affirmance of the IJ‘s removal order in 04-74313 is GRANTED and Mr. and Mrs. Kawashima‘s petition for review of the BIA‘s denial of the motion to reopen in 05-74408 is DISMISSED as MOOT.
O‘SCANNLAIN, Circuit Judge, with whom CALLAHAN, Circuit Judge, joins, specially concurring:
I concur in the court‘s opinion because it faithfully applies our precedent. I write separately because the anomalous result such precedent requires us to reach ignores the рlain meaning of the statute we interpret and disregards common sense.
I
This case puts us to the familiar task of examining the list of removable offenses set forth in the Immigration and Nationality Act (“INA” or the “Act“),
First, when this court considers whеther a petitioner‘s prior conviction qualifies as a removable offense under the INA, we apply the two-step test designed by the Supreme Court in Taylor v. United States, 495 U.S. 575 (1990), for recidivist sentencing enhancement statutes structured in the same way. See, e.g., Ye v. INS, 214 F.3d 1128, 1131-34 (9th Cir.2000). At the first step, we ask whether the petitioner‘s prior conviction necessarily involves every element of the removable offense (the “generic offense“). If it does, the fact of the defendant‘s conviction alone qualifies him or her as removable. Id. at 1133. If the statute under which the petitioner was convicted proscribes a broader range of conduct than the generic offense, however, we move to Taylor‘s second step (which our court calls the “modified categorical approach“), and
The second precedent that compels our holding is our recent en banc decision in Navarro-Lopez v. Gonzales, 503 F.3d 1063 (9th Cir.2007) (en banc), where we reformulated our modified categorical approach and held that “[w]hen the [petitioner‘s] crime of conviction is missing an element of the generic crime altogether,” we can never examine the record of conviction to determine whether the former fits within the scope of the latter because the record can never reveal whether the jury was actually required to find, or the petitioner (as defendаnt) necessarily admitted, any element of the generic offense that is not included in the statute of conviction. Id. at 1073. Our holding, of course, was informed by the lone authority we cited for this rule—then-Judge Kozinski‘s concurrence in Li, 389 F.3d at 899-901. There, Chief Judge Kozinski noted that, in sentencing cases, Taylor made clear that the jury convicting a defendant of a predicate offense must be “actually required” to find him or her guilty of every element of the sentencing enhancement statute‘s generic offense before the sentencing judge can increase the defendant‘s sentence based on such prior crime. Id. at 899 (quoting Taylor, 495 U.S. at 602 (emphasis in Li)).
Chief Judge Kozinski identified our decisions in United States v. Alvarez, 972 F.2d 1000 (9th Cir.1992) (per curiam), and United States v. Parker, 5 F.3d 1322 (9th Cir. 1993), as violating this rule and argued that they should be reversed. Li, 389 F.3d at 899-900 (Kozinski, J., concurring). In Alvarez, we concluded that a defendant‘s California conviction for burglary qualified as generic burglary as defined in a federal sentencing enhancement statute, even though generic burglary requires “unlawful entry,” an element the California statute lacked. 972 F.2d at 1005. We determined that such result was justified because the charging papers alleged that the defendant committed an unlawful entry even though the statute under which he was convicted was silent on the point. Id. We applied the same reasoning in Parker, although we determined that the record was insufficient. 5 F.3d at 1327. In Li, Chief Judge Kozinski argued that we ignored Taylor in both cases because “even if the jury had found that[the defendant] entered a building unlawfully, finding a fact isn‘t the same as being required to find it—and Taylor calls for the latter.” Li, 389 F.3d at 900 (Kozinski, J., concurring) (internal citations omitted).
Our court adopted this reasoning in Navarro-Lopez, explicitly citing Chief Judge Kozinski‘s Li concurrence, and such reasoning certainly appears consistent with Taylor‘s core principles. Yet, it compels a most curious result here. In the case at hand, the Kawashimas pled guilty to violating a federal statute that prohibits fraud but does not require a particular monetary loss. Maj. Op. at 1113. Under Navarro-Lopez, we cannot cоnsult the record of their convictions to determine whether their crimes caused a loss exceeding $10,000, as Subsection M(i) requires, because such loss is not an element of the
II
Before Navarro-Lopez, our caselaw avoided the illogical result that decision compels in this particular case. Previously, we considered whether fraud convictions qualified as removable offenses under Subsection M(i) by examining the record of conviction to determine the loss amount even where the statute of conviction lacked such an element. See Kharana v. Gonzales, 487 F.3d 1280, 1283-84 (9th Cir. 2007); Li, 389 F.3d at 897; Chang v. INS, 307 F.3d 1185 (9th Cir.2002). We interpreted Subsection M(i) as having two “elements“: (1) fraud or deceit, and (2) loss to the victims in excess of $10,000. Chang, 307 F.3d at 1189. And, to remain consistent with Taylor, we insisted that the record of conviction establish that the jury “actually found” or that the petitioner necessarily pled guilty to both. Li, 389 F.3d at 896 n. 7, 897-98. In other words, we treated Subsection M(i)‘s loss requirement as an “element” of the generic offense, but accepted record evidence as sufficient to establish that the petitioner was, in fact, convicted of such element. See Kharana, 487 F.3d at 1281 n. 2 (statute of conviction did not require monetary loss, but “in entering her plea, petitioner admitted to defrauding her victims of over $77,000“); Ferreira v. Ashcroft, 390 F.3d 1091, 1098-99 (9th Cir.2004) (statute of conviction required only a $1,000 loss, but restitution amount set forth in plea agreement was sufficient to establish that petitioner‘s crime involved a $10,000 loss).
Navarro-Lopez rejected this approach, concluding that even our demand for such overwhelming evidence violated Taylor‘s requirement that the crime of conviction contain every element of the generic offense. See 503 F.3d at 1073. This may very well be the best reading of Taylor, but if so, it is curious that none of our sister circuits agree with the rule Navarro-Lopez requires us to apply here.2 Thus, in my view, the flaw in Navarro-Lopez lies not in its interpretation of Taylor, but in its unbending application of that test, designed for criminal sentencing enhancement statutes, in the distinct setting of civil removal.
A
Our precedents applying the modified categorical approach in immigration cases make two assumptions that I suggest are untenable. The first assumption is that any and all language Congress uses to define a particular generic offense in the INA must be parsed into “elements,” each of which the petitioner must, in fact, have been convicted. Four of our sister circuits reject such extreme literalism, and with good reason. The most common generic offenses found in the INA and in recidivist sentencing enhancement statutes are relatively unitary categorical concepts—like ‘forgery’ ... ‘burglary’ ... or ‘crime of violence.‘” Singh v. Ashcroft, 383 F.3d 144, 161 (3d Cir.2004) (emphasis added). It makes sense to insist that a defendant was actually convicted of a burglary or forgery or committing violence before a subsequent tribunal enhances his sentence upon a future conviction or classifies him as a removable alien on the basis of this prior offense. Yet as the Third and Fifth Circuits explain, “a departure from the formal categorical approach seems warranted” in cases where the generic offense “invite[s] inquiry into the facts underlying the conviction at issue.” Id.; see Arguelles-Olivares v. Mukasey, 526 F.3d 171, 176-77 (5th Cir.2008) (same). Indeed, “[t]he qualifier ‘in which the loss to the victim or victims exceeds $10,000’ in [Subsection M(i)] is the prototypical example—it expresses such a specificity of fact that it almost begs an adjudicator to examine the facts at issue.” Singh, 383 F.3d at 161. Simply stated, Subsection M(i) classifies an alien as removable if he or she is convicted of а fraud-related offense “in which the loss to the victim or victims exceeds $10,000,” it does not require conviction of “a $10,000 fraud.” See Nijhawan v. Attorney Gen., 523 F.3d 387, 393 (3d Cir.2008) (emphasis added). As the Third Circuit illustrates, just as we would not interpret a generic offense that subjects an alien to removal if he or she is convicted “within the last two years” to require such durational language to be included in the statute of conviction itself, it is unreasonable to read Subsection M(i) as requiring the statute of conviction expressly to provide for a $10,000 loss. See Singh, 383 F.3d at 161; see also Arguelles-Olivares, 526 F.3d at 177-78 (“The amount of loss is relevant in a criminal prosecution primarily, if not exclusively, to sentencing. When a tribunal subsequently examines, for collateral purposes like those here, the amount of loss resulting from an offense, the reason for applying the modified categorical approach does not fully obtain.“).
Accordingly, I believe it is unreasonable to interpret Subsection M(i) to require a “loss to the victim” element in the alien‘s statute of conviction. Rather, the most natural reading of Subsection M(i)‘s $10,000 loss requirement is as a qualifying provision that limits the number of predicate convictions that would otherwise subject an alien to removal. In other words, the statute provides that any alien who commits an offense “involv[ing] fraud or deceit” is removable if such offense is one “in which” the loss to the victim exceeded $10,000.
B
More importantly, acknowledging the linguistic distinction between provisions such as Subsection M(i) and the remainder of the removable offenses enumerated in the INA should not obscure the greater
First, the Supreme Court‘s decision in Taylor was informed by constitutional concerns that are entirely absent from the immigration context. When a sentencing judge increases a defendant‘s sentence based on his or her prior convictions, the defendant‘s Sixth Amendment rights are impacted directly. Yet when an immigration judge cites an alien‘s prior conviction as the basis for removal, there is no constitutional right in play. See INS v. Lopez-Mendoza, 468 U.S. 1032, 1038 (1984) (explaining that “various protections that apply in the context of a criminal trial do not apply in a deportation proceeding“); Conteh, 461 F.3d at 55. As the Seventh Circuit explains, Taylor was designed to “prevent[] the sentencing judge in the new casе from assuming a role that the Constitution assigns to the jurors in the first case.” Ali, 521 F.3d at 741. This design served two purposes: saving the sentencing court the burden of a retrial, see Taylor, 495 U.S. at 601-02, and preserving the Sixth Amendment‘s allocation of responsibilities between the judge and jury, see id.; Shepard, 544 U.S. at 24-26. The latter concern has no place in an immigration case because it is not a criminal proceeding and, as such, “the [S]ixth [A]mendment and the doctrine of Apprendi v. New Jersey, 530 U.S. 466 (2000), do not come into play.” Ali, 521 F.3d at 741. And the former goal, saving the agency the burden of a retrial, is a question within the agency‘s discretion rather than our own. Id.; see also Conteh, 461 F.3d at 45; Nijhawan, 523 F.3d at 399 (“[W]e should not raise an aspect of an immigration statute to the level of an element of a criminal offense ... merely because requiring that it be a part of the conviction eases a court‘s decision-making process.“)
Second, the INA specifies that, in removal proceedings, the government “has the burden of establishing by clear and convincing evidence” that the alien is removable.
As the Seventh Circuit has explained, after the fact of petitioner‘s prior conviction has been established, “the appropriate classification of that conviction—whether it was a crime ‘involving moral turpitude’ or one ‘in which loss ... exceeds $10,000‘—may require additional information.” Ali, 521 F.3d at 741. That is to say, the need to decide whether a crime is one of “moral turpitude” or one in which the loss to the victim exceeds a particular amount “does not have a parallel in criminal cases.” Id. at 741-42. After all, a term such as “‘moral turpitude’ just isn‘t relevant to the criminal prosecution; it is not as if ‘turpitude’ were an element of an offense.” Id.; see also Navarro-Lopez, 503 F.3d at 1085 (Bea, J., dissenting) (“There is no generic federal crime of moral turpitude.... One has to have a crime, such as burglary, to use the Taylor categorical analysis.“).
It is true that the INA requires an alien to be “convicted” of the generic offenses before he or she may be considered removable on that basis. See
If one accepts that Taylor‘s constitutional concerns do not migrate to the removal context, and if one further accepts that the burden of proof set forth in the INA differs from Taylor‘s, there is no reason to ignore the record of conviction when determining whether an alien‘s conviction qualifies as a removable offense. It should make no difference if the question is whether the predicate conviction was one “involving moral turpitude,” as it was in Navarro-Lopez, or if the question is whether such conviction is one “in which
Navarro-Lopez may have accurately interpreted Taylor, but it did so at the expense of fairly applying the INA. By importing Taylor‘s criminal sentencing test, root-and-branch, to the arena of civil removal in which we find ourselves here, I believe Navarro-Lopez improperly rewrites the INA‘s plain instructions and stands as a roadblock needlessly frustrating Congress‘s intent.
IV
Our reformulation of the modified categorical approach in Navarro-Lopez stands alone, without support from any other courts of appeals to have considered this question. Moreover, our treatment of this issue was, at best, cursory—two paragraphs and a footnote—and, in my view, entirely insufficient to address a question of such great magnitude. Our decision never addressed the dissenting views of our sister circuits, or even acknowledged the рrecedents it overturned. See Hart v. Massanari, 266 F.3d 1155, 1171 (9th Cir. 2001) (Kozinski, J.) (“[W]e would consider it bad form to ignore contrary authority by failing even to acknowledge its existence.... So long as the [rejected] earlier authority is acknowledged and considered, courts are deemed to have complied with their common law responsibilities.“).
In light of such swift treatment of an important and frequently recurring question, and especially in light of the growing weight of authority that rejects our conclusion, I believe it is fair to ask whether the modified categorical analysis we adopted as law of this circuit in Navarro-Lopez reasonably interprets the INA. I believe it does not, and I write separately in the hope that an en banc court with the power to address the anomalies that Navarro-Lopez compels will ask the same question very soon.
Kimberlyn HEARNS, Plaintiff-Appellant, v. SAN BERNARDINO POLICE DEPARTMENT; Garret Zimmon; Michaеl Billdt, in his capacity as Assistant Chief and Patrol Division Commander of the SBPD; Wesley Farmer, individually and in his capacity as Captain in the SBPD; Mark Garcia, individually and in his capacity as a Lieutenant in the SBPD; Mark Emoto, individually